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TMI Blog2016 (6) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of this, the impugned order is unsustainable and liable to be set aside. - Decided in favour of appellant with consequential relief - Appeal No. E/3239/05 - A/87770/16/EB - Dated:- 25-5-2016 - Shri M.V. Ravindran, Member (Judicial) And Shri Devender Singh, Member (Technical) For the Appellant : Ms. Anjali Hirawat, Advocate For the Respondent : Shri S.V. Nair, Supdt. (AR) ORDER Per M.V. Ravindran This appeal is directed against Order-in-Appeal No. P-III/237/ 2005 dated 25.7.2005 passed by the Commissioner of Central Excise (Appeals), Pune-III. 2. Heard both sides and perused the records. 3. The issue involved in this case is the appellant herein is a 100% Export Oriented Unit (EOU) manufacturing Heat E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on behalf of the Revenue submits that the eligibility to avail benefit of Notification No. 23/2003-CE is not correctly applied by the appellant. They are not eligible to avail the said benefit as the clearances is made to their unit as stock transfer and having not discharged the Sales Tax liability, which amounts to exempted granted to them and availed by them. He would rely upon judgment of the Tribunal in the case of Johan Deere (I) Pvt. Ltd. 2014 (311) ELT 189 (Tri-Mum). 6. On consideration of the submissions made by both sides and perusal of the records, we find that the issue involved in this case is regarding the eligibility to avail the benefit of exemption Notification No. 23/2003-CE dated 31.3.2003 from the payment of SAD by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as amended from time to time filtering out, shorn unnecessary details, the said Notification extends exemption from payment of SAD only if the products which are cleared from EOU to DTA, are cleared on payment of applicable sales tax or VAT. 9. The adjudicating authority in the case in hand has held that the clearance effected by the appellant herein to their own sister concern being stock transfer, has not passed the test of discharge of sales tax/VAT hence the appellant is required to pay SAD at the applicable rate on such clearances. The reasoning adopted by the adjudicating authority that as stated by the dept. representative, is that the Notification specifically talks about the exemption of sales tax, which would mean that sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordance with law ie ., by issuance of notification by the concerned authorities. It is no body's case that the state government has no power to exempt sales tax/VAT on specific products. In our view, the only question which needs to be addressed is whether the goods cleared into DTA to appellants sister units are exempted or not exempted, which in our considered view due to foregoing reasons, has to be held in favour of assessee, in the absence of any evidence on record to show that the said products is cleared to DTA is exempt from payment of sales tax. It is to be noted that provisions of Central Sales Tax 1956 recommends movements of goods inter state by raising stock transfer notes even to independent buyers/own units by non-payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er bench has held that the assessee in that case was availing sales tax exemptions in respect of sales from their unit located in the notified backward area, as has been specified in the order of exemption granted to them by the state government of UP. It would be not out of place to note that the state government of UP had specifically granted exemption from leviable of sales tax on the goods which were manufactured in a notified area, hence the larger bench came to the conclusion that for discharge of excise duty, the SAD has to be included. The terms of reference to the larger bench being totally different than the facts of the issue which is raised in these appeals; in our view the reliance placed by the revenue on the ratio of the larg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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